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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

The Administrative Law Judge issued his Decision in the above-entitled
proceeding, finding that the Respondent had not engaged in the unfair labor
practice alleged in the complaint, and recommending that the complaint be
dismissed in its entirety. Thereafter, the Charging Party (the Union) filed
exceptions to the Judge's Decision and a brief in support thereof. The
Respondent also filed an opposition to the Charging Party's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and
section 7118 of the Federal Service Labor - Management Relations Statute (the
Statute), the Authority has reviewed the rulings of the Judge made at the
hearing and finds that no prejudicial error was committed. The rulings are
hereby affirmed. Upon consideration of the Judge's Decision and the entire
record in this case, the Authority hereby adopts the Judge's findings,
conclusions and recommendation. [ v11 p493 ]

U.S. ARMY TROOP SUPPORT
AND AVIATION MATERIAL READINESS
COMMAND, ST. LOUIS, MISSOURI
Respondent
and
NATIONAL ALLIANCE OF POSTAL AND
FEDERAL EMPLOYEES
Charging Party
Case No. 7-CA-644
Robert H. Garfield, Esq.
For the Respondent
Edward L. Welch, Esq.
For the Charging Party
John J. Rubin, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge

This is a proceeding under the Federal Service Labor - Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5 U.S.C.
7101, et seq. It was instituted by the Regional Director of the Seventh Region
of the Federal Labor Relations Authority by the issuance of a Complaint and
Notice of Hearing dated September 30, 1980. The Complaint was issued following
an investigation of an unfair labor practice charge filed on July 8, 1980, and
an amended charge dated December 8, 1980, by the National Alliance of Postal
and Federal Employees, herein referred to as the Charging Party, Union, or
NAPFE. [ v11 p495 ]

The Complaint alleges that U.S. Army Troop Support and Aviation Materiel
Readiness Command, St. Louis, Missouri, herein referred to as Respondent,
violated Section 7116(a)(1) of the Statute by the following conduct:

On or about March 25, 1980, Respondent, acting by and through Major
General Richard H. Thompson and Dona L. McGlynn, did issue to an employee of
Respondent a written rule or policy prohibiting employees and/or Union
officials, as well as any other labor organization other than National
Federation of Federal Employees (NFFE) Local 405, the current exclusive
representative of Respondent's bargaining unit employees, from distributing
union literature within Respondent's facilities at any time during the life of
the existing collective bargaining agreement between Respondent and NFFE Local
405, except during the "open window" period prior to the termination of said
collective bargaining agreement.

In its Answer, Respondent denied that the rule or policy described above
was issued to an employee of Respondent, and denied any violation of the
Statute. The contentions of the parties will be more specifically discussed
later in this decision.

A hearing was held in St. Louis, Missouri at which the parties were
represented by counsel and afforded full opportunity to adduce evidence and
call, examine, and cross-examine witnesses and argue orally. Briefs filed by
Respondent and Charging Party have been duly considered.

Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and from my
observation of the witnesses and their demeanor, I make the following findings
of fact, conclusions of law, and recommended order.

1. In February or early March of 1980, a special edition of the National
Alliance of Postal and Federal Employees Reporter was posted on a bulletin
board on the Respondent's premises. The newsletter dated February 4, 1980
contained an article about a recent EEO class action matter and identified
certain NAPFE officers who were employees of the Respondent.

2. Upon learning that the newsletter was posted, an agent of Respondent
removed the letter from the bulletin board and wrote the following letter dated
March 11, to Mr. Ransom:

Attached is a National Alliance of Postal and Federal Employees (NAPFE)
Newsletter which was posted on a [ v11 p496 ] bulletin board in the 1st floor
lunchroom in Building 102. Since you are identified in this newsletter as the
President of NAPFE Local 918, I am returning this bulletin to you.

Inasmuch as no NAPFE Local has an exclusive recognition as TSARCOM,
there is no contractual right or obligation to post or distribute NAPFE
literature in TSARCOM. Further, the fact that another labor organization has
exclusive recognition at this Headquarters makes it an unfair labor practice
for me to permit such activity. I request that you advise members of your
organization to refrain from posting or distributing NAPFE literature in the
future without proper authority. Any future occurrences of this nature will
result in this Command taking appropriate action to correct the situation.

The Complaint does not allege any violation based upon this letter.

3. In reply thereto, Union President Ransom sent a letter to Commanding
Officer Thompson of Respondent. The letter, dated March 17, 1980 and typed on
official stationery with the Union's letterhead stated as follows:

In reference to your letter dated 11 March 1980, it is regrettable that
a National Alliance Newsletter was posted on a bulletin board at TSARCOM
without proper authority. I have advised the members of Local 918 that they are
not to post any literature without the proper authority.

Sir, as a matter of clarification, am I to understand that distribution
of National Alliance or any other organizational material in a non-working area
during non-duty time is prohibited?

The question asked by the Union is clear in certain respects. Thus, it
referred to distribution, rather than solicitation; it was confined to
"organizational material" rather than institutional or other types of material
such as the newsletter which had been removed from the bulletin board; it
referred to "non-working area" rather than working area; and it referred to
"non-duty time" as opposed to regular duty hours. However, the question was
somewhat ambiguous with respect to whether the distribution of organization
material involved employees or non-employees.

4. In answer to the Union's request for clarification, Respondent
drafted a letter dated March 25 (G.C. Exh. No. 5) which is the document upon
which the complaint is based. That letter stated as follows: [ v11 p497 ]

This is in response to your letter dated 17 March 1980 requesting
clarification regarding the policy of distributing NAPFE literature in
non-working areas during non-duty time. NAPFE nor any other labor organization
other than NFFE Local 405 has any authority to distribute literature within
TSARCOM throughout the three year life of the current agreement with NFFE Local
405 other than during the open window period at the termination of that
agreement.

I trust this information answers your question.

It seems to me that if the Union had any legitimate doubts as to the
applicability of the Respondent's answers to employees and non-employees alike,
it could have sought further clarification from Respondent. Instead, it elected
to file an unfair labor practice charge which, of course, it has a right to do.

5. When Ms. Dona Lee McGlyn, a labor relations specialist, prepared the
foregoing reply for Respondent she knew that Ransom had been promoted to a
position with another agency but did not know his new location, so she sent the
letter to his last worksite knowing it would be forwarded to him. Accordingly,
when Ransom received this letter in his capacity as Union President, he was no
longer a bargaining unit employee (TR. 24, lines 4-8, 23-25.).

6. Ms. McGlynn credibly testified that the March 25 letter was addressed
to NAPFE as a labor organization not having recognition within the Command (Tr.
32); that she perceived the question as being limited to the right of the Union
as an entity to engage in distributing its organizational literature (Tr. 35,
38, 39, 42); and that she confined her answer to the right of NAPFE and other
outside labor organizations to distribute their organizational literature. In
response to extensive examination and cross-examination by three attorneys,
McGlynn very credibly and persuasively testified that the question asked and
the answer given did not cover the question of distribution by employees; that
she knew of no agreement barring employees from distributing literature on
behalf of NAPFE (Tr. 44); and that distribution by NAPFE members, who were
employees, was clearly permitted (Tr. 36).

7. Although Union President Ransom testified that his Union had members
among Respondent's employees, the record does not establish that the
"no-distribution rule" set forth in Respondent's March 25 letter was ever
communicated to employees by Union President Arthur Ransom.

The General Counsel and Charging Party contend that the March 25 letter
from Respondent contains a no-distribution rule which is sufficiently broad as
to encompass and prohibit distribution of non - NFFE labor organizational
literature by employees in non-working areas during non-duty time. The
Respondent contends that the letter dealt solely with, and correctly stated the
law concerning, the rights of outside labor organizations. Further, Respondent
contends that the Charging Party has not demonstrated any special circumstances
entitling it to enjoy the use of Respondent's services and facilities. A
secondary argument advanced by Respondent is that Arthur Ransom was not an
employee of Respondent and therefore his Title VII rights were not interfered
with, restrained or coerced within the meaning of Section 7116(a)(1).

The General Counsel did not file a brief but did discuss several cases
during his closing argument, none of which is pertinent to the issues under
consideration. By General Counsel's own admission, in Department of the Air
Force, Norton Air Force Base, California, A/SLMR No. 337 (January 8, 1974) the
propriety of a purportedly broad "no distribution" rule was not at issue.
Similarly, the Assistant Secretary, ruled on an altogether different issue in
Department of Transportation, Federal Aviation Administration, Alaskan Region;
Anchorage, Alaska, A/SLMR No. 1141 (October 18, 1978). The private sector cases
cited by the General Counsel, NLRB v. Magnavox Company of Tennessee, 415 U.S.
322 (1974) and Gale Products, 142 NLRB 1246 (1963) likewise deal with an issue
far afield from the issues presented in the instant case. It is true that both
Gale and Magnavox concerned blanket prohibitions against distribution of
literature on company property; however, in interpretation of the rules was not
at issue. The primary thrust of those decisions is whether a labor organization
can "bargain away" employees' rights to form, join, or assist labor
organizations under section 7 of the National Labor Relations Act.

Respondent's March 25, letter must be considered in the proper context.
While Respondent's removal of the Charting Party's newsletter from one of its
bulletin boards was the catalyst for the correspondence which culminated in the
March 25, letter and subsequent unfair labor practice charge, there never has
been any contention that removal from the bulletin board was improper. The
March 25, letter is the sole basis of the charge and complaint. [ v11 p499 ]

The question posed to Respondent in the Charging Party's March 17,
letter, signed by Mr. Ransom on union letterhead and as the Charging Party's
president, did not mention the rights of employees. It referred solely to the
"National Alliance". Consistent with the Charging Party's language, Respondent
responded in kind:

...NAPFE nor any other labor organization other than NFFE Local No. 405
has any authority to distribute literature within TSARCOM...

The language is clear and unequivocal. The March 25, letter addresses
the question of the rights of labor organizations, in particular the Charging
Party, not those of Respondent's employees. I find and conclude that
Respondent's reply clearly was directed towards distribution by labor
organizations, and not to distribution by employees. Assuming, arguendo, that
Respondent's reply constitutes a no-distribution rule, I conclude that the
"rule" does not prohibit employees from distributing organizational literature
and therefore does not infringe on employees' Section 7102 rights to "form,
join, or assist any labor organization." Thus, I conclude that Respondent did
not violate Section 7116(a)(1) of the statute.

Moreover, in addition to the clear and unequivocal language of the March
25 letter, we have the credible and persuasive testimony of Ms. McGlynn
concerning her perception of the question asked by the Union - namely that
NAPFE was inquiring about the right of a labor organization as an entity - and
her reply in kind. In all fairness, it seems to me that it was the Charging
Party's question itself which lead Ms. McGlynn to this perception, since the
thrust of the question seemed, in fact, to concern the rights of the Union, no
mention being made of distribution by employees. Thus, the testimony of McGlynn
provides additional evidence in support of my conclusions set forth above based
solely on a reading of the letter.

B. Respondent's Neutrality Defense

Although the Charging Party's question and Respondent's answer spoke in
terms of distribution of literature, it seems quite clear that Respondent was
also concerned with "access" to Respondent's property at a time when it had a
contract with another union. Thus the March 25 letter referred to the "open
window period at the termination of the agreement" with NFFE, and the earlier
letter expressed the view that it would be an unfair labor practice for
Respondent to permit NAPFE to post or distribute literature since another labor
organization had exclusive recognition. Accordingly, Respondent's other defense
is that the March 25 letter correctly stated the rights of the Charging Party
as set forth in decisions under the Executive Order dealing with the rights of
non- employee representatives not possessing "equivalent status" to enjoy the
use of the services and facilities of a government agency for purposes of
organizational activities. In an excellent brief, Respondent fully [ v11 p500 ]
discussed this defense and analyzed the lead case issued by the Authority on
this subject.
1
However, in view of my conclusion that Respondent's March 25 letter did not
constitute an invalid no-distribution rule, I find it necessary to pass upon
this defense and the applicability of the Authority's decision in the cited
case.

C. Promulgation

Even assuming, arguendo, that Respondent's alleged no-distribution rule
was ambiguous and therefore could be construed as prohibiting distribution "by
employees," I would have a problem in concluding that the rule was ever
"promulgated" to employees in this case. Webster's New World Dictionary
2
defines promulgation as follows: "1. to publish or make known officially (a
decree, church dogma, etc.), 2.(a) to make known the terms of (a new or
proposed law or statute), (b) to put (a law) into effect by published its
terms, 3. to make widespread." Roget's International Thesaurus
3
gives the following words as synonyms: publish, propagate, circulate,
disseminate, broadcast, proclaim, announce, declare, spread, spread word, and
diffuse.

In private sector cases, employers generally try to make sure that a
no-distribution rule is given widespread dissemination to employees. Indeed,
the whole purpose in publishing and announcing the rule is to ensure that
employees are informed as to precisely what kind of conduct is being prohibited
and, at the same, usually warned that violation of the rule may or will result
in some sanction being imposed. These elements are missing from this case.
Here, we do not have a situation where an employer on its own initiative
formulates a rule and the proceeds to publish it to employees. Rather, we have
an employer responding in writing to a written question propounded by the
Union's President. The reply was not posted on bulletin boards for employees to
read; it was not circulated in writing to employees; it was not even circulated
to supervisors. Where, then, is the promulgation? What we have in this case, it
seems to me, is a written reply stating the Respondent's position concerning
what it believes are the limitations on an outside labor organization's right
to distribute organizational literature. The reply was not directed towards
employees; it was not distributed to employees. Indeed, it does not even appear
that the reply was intended to be received by employees. [ v11 p501 ]

Arthur Ransom received the March 25 letter in his capacity as Union
President. Because he was a former employee at the time he received the letter,
it cannot even be said that the rule was promulgated to "an employee." The only
way to find that the reply was promulgated to employees is to infer that Union
President Ransom would, as a matter of course, have conveyed this information
to those employees of Respondent who also were members of NAPFE. But the only
reason to draw an inference is because of the absence of testimony as to
whether, in fact, the substance of Respondent's March 25 letter was ever
communicated by Hansom to employees and, if so, in what manner. Since Hansom
testified at the hearing but offered no testimony on this aspect of the case,
it is my conclusion that the General Counsel has failed to meet his burden in
this respect, and I decline to infer that Hansom became a conduit for
announcing or otherwise promulgating the alleged no-distribution rule to
Respondent's employees. Thus, for this additional reason, I would find no
violation of the Statute.

Having concluded for the reasons set forth above that Respondent did not
violate Section 7116(a)(1) of the Statute as alleged, it is hereby recommended
that the Authority issue the following: